NG CHING HUNG AND ANOTHER v. LAU SHUN HING

Headnote

Appeal from decision of a judge finding that a defendant driver whose passing vehicle collided with a pedestrian running into his vehicle from the front of a stationary maxicab was 30% to blame.

The only evidence before the court as to the circumstances of the accident was contained in a statement to the police by the defendant driver. The evidence indicated that the defendant drove his vehicle so that it was well clear of the maxicab, that he was not proceeding at an unsafe speed, that there was no evidence of failure to keep a proper look-out. Held that there was no duty on the driver in such circumstances to sound his horn or to drive at a speed so slow that it would ensure he did not collide with a pedestrian who ran into his path and that the judge was wrong to find any negligence on the part of the driver.

-------------------

JUDGMENT

-------------------

Power, J.A.

1. This is the judgment. of the court.

2. On the 17th of February 1987 at about 8.20a.m., NG Ching-hung, the plaintiff, was crossing Ko Fai Road, Kwun Tong, when he was struck by a light goods vehicle, registration No.CN 6542, being driven by its owner, LAU Shun-hing, the defendant. The plaintiff, who suffered severe injuries, brought an action for damages for negligence against the defendant alleging, inter alia, that he failed to keep a proper lookout, drove too fast and failed to. sound his horn. It was the defence that the accident was wholly caused by the negligence of the plaintiff in that he had, inter alia failed while crossing the road, to keep any proper lookout for oncoming vehicles.

3. The trial before Wong J. took an unusual course in that only one witness, a police officer who produced a sketch plan of the scene or the accident, was called. The judge also had before him a motor vehicle Enquiry Accident Report, 8 photographs of the scene and of the vehicle and the statement of the defendant taken by a police officer some three hours after the accident.

4. The plaintiff's case rested largely upon the statement. In it the defendant said that, while driving his vehicle loaded with wood materials along Ko Fai Road at about 25-26 m.p.h. in third gear, he saw a maxicab stop "to set down and pick up passengers at a distance of about three lengths of my vehicle ahead by the roadside on my left". He said that on seeing this "I steered my car to the right travelling with my vehicle a little bit in the opposite carriage way and ready to overtake the maxicab." He went on to say that "when the head of my car reached a distance of about 2 ft. prior to the head of the maxicab, I suddenly saw a man running out from the head of the maxicab. On seeing that, I braked the car immediately. But as the distance was so close, the near side front of my car hit the said man. After the impact, I immediately stopped the car and got out of it." In answer to questions from the interviewing police officer, he said that the maxicab had stopped about 6 ft. from the near side kerb, and that he did not see the man before the accident as his view was blocked by the maxicab.

5. The trial judge when canvassing the evidence in his findings, stated that he thought it "not unreasonable to infer that he (the defendant) must be driving at a speed in the region of 30 m.p.h." He gave no indication as to what he based that inference upon. It seems that it must have been founded upon a submission by Miss Pinto in which she said that "if we take the skid mark of 11 m., and, compared it with page 120 of Bingham (sic). He (sic) must have been driving at least 30 m.p.h. - taking the skid mark". We are satisfied that, in circumstances such as these, which involved a loaded goods vehicle, without expert evidence to indicate the proper use of such a braking table which, we cannot help but remark, makes no reference to skid marks, the judge was wrong to have drawn the inference which he did as to speed. This finding is not, however, in the outcome of great significance as Mr. Tong Q.C, with Mr. Ozorio for the plaintiff, does not place any reliance thereon.

6. The trial judge was satisfied that the plaintiff was negligent, but he was also satisfied that there was negligence on the part of the defendant. This he described in the following way:

"In this case, the Defendant had clearly noticed the stationary maxicab setting down and picking up passengers before the Plaintiff ran into his vehicle. If he had looked at the side where the passengers alighted and boarded the maxicab at all or more closely he should have seen the Plaintiff earlier and the accident would have been avoided. I am satisfied on a balance of probabilities that he was not keeping a proper lookout and this is why this accident happened."

 

The judge apportioned the blame 70% to the plaintiff and 30% to the defendant.

7. From that decision, appeal has been brought to this court. It is the submission of Mr. Mills-Owens, Q.C., who appears with Mr. Pirie for the appellant defendant, that there was no evidence before the judge to support any finding of negligence on the part of the defendant. Having react the papers, we asked Mr. Tong to address us first. He submitted that the accident must be looked at in the light of the following facts: (i) that it occurred at a time when and at a place where workers were returning to work in the factories and shipyards in the vicinity; (ii) that the maxicab would very likely be carrying such workers; (iii) that the defendant had seen it stop well over 50 ft. ahead of him. Given those matters he submitted that the defendant should have taken precautionary measures to avoid the potentially dangerous situation that could arise if a passenger suddenly emerged from in front of the maxicab by (1) giving it a wide berth, (2) slowing down; and (3) sounding his horn.

8. It was the submission of Mr. Tong that the judge's finding of failure by the defendant to keep a proper lookout was justified upon the evidence as, had he kept a proper lookout, he would have seen sufficient to alert him to the need to take the precautionary action outlined above. He submitted that failure to heed the precepts of the Road Users Code is prima facie negligence, and that the defendant was in breach of that code insofar as he did not drive with the appropriate degree of care placed by it upon drivers proceeding in streets which pedestrians might cross. He reminded us that the onus lay on the defendant to show that the trial judge was clearly wrong in his conclusion.

9. He referred to a number of cases and, while conceding that each case depends very much upon its own facts, submitted that there were principles to be drawn therefrom which had direct application to the situation before us. He referred particularly to Foskett v. Mistry [1984] RTR 1 and to the judgment of May L.J. at p.4 where he said, quoting Lord Dunedin in Fardon v. Harcourt-Rivington (1932) 146 LT 391 at p.392,:

"The root of this liability is negligence, and. what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions."

 

Mr. Tong argued that any driver in Hong Kong must have recognized the possibility that a passenger, stepping down from a maxicab which has stopped to allow him to alight, might then immediately attempt to cross the road. The mere existence of such a possibility is not, however, in our view the real issue. What must be. determined is whether the defendant, in all of the circumstances including that possibility, acted with reasonable care. There was no evidence before the trial judge to indicate that the defendant would have been able to see more than he admitted in his statement to having seen. The thrust of Mr. Tong's argument was that, having observed the maxicab stop, given the possibility referred to above, it was incumbent upon the defendant to sound his horn and moderate his speed. we were assisted in assessing this argument by what were reported as the observations of the Court of Appeal in Moore (an infant) v. Poyner [1975] RTR 117, in which an infant who ran on to the roadway from in. front of a parked coach was struck by a passing car. Buckley L., having indicates that the driver in order to have put himself in a position where he could have stopped and thus avoided the accident would have had to slow down to something like 5 m.p.h., said at 113:

10. Mr. Tong submits that the present case is taken out of the type of situation being dealt with in Moore v. Poyner because the defendant admitted that he was aware of the likelihood that people would alight from the maxicab. we are satisfied that no such distinction can properly be drawn. To require a driver in circumstances such as this to slow down from the moderate speed of 25 to 26 m.p.h. to a speed that would ensure that he cues in a position to avoid any risk of a pedestrian running into his path from in. front of the minibus would be quite unreasonable. we are also satisfied that the suggestion that the defendant should immediately have sounded his horn places too heavy a burden on the driver. The defendant drove his vehicle so that it was well clear of the maxicab, he was not shown to have proceeded at an unsafe speed in the circumstances and there is no evidence that he failed to keep a proper lookout. When the plaintiff appeared in front of him, there was no action that he could take to avoid a collision. In our view, there was nothing before the judge to establish that the defendant failed to act with reasonable care. We were satisfied that the trial judge was wrong to find negligence on his part and that this appeal must, therefore, succeed.